Non-Parties Involvement in Family Law Proceedings

Santilli v. Piselli, 2010 ONSC 2874

Background

This was a decision of Justice Mc Gee of the Ontario Superior Court of Justice based on a Motion brought by the wife in this proceeding. The wife sought the following Orders from the Court:

  1. That the husband’s mother be added as a party to the proceeding;
  2. That disclosure be produced by the husband’s mother for her business records as the husband works for his mother’s business; and
  3. That the husband’s mother be questioned by the mother.

Each of theses issues were dealt with in turn by Justice Mc Gee.

Analysis

1. Adding the husband’s Mother, Ms. Piselli, to the Proceeding. When asked why Ms. Piselli should be added as a party to this proceeding, counsel for the mother responded by explaining that it was to “secure obligations of the respondent for support and equalization.” Rule 7(5) of the Family Law Rules allow for a party to be added to a proceeding. Case law has clarified this rule and it has been held that unless an order could be made in favour of, or against the individual in question, the court should not make an Order to add the individual.

Justice Mc Gee held that in this matter, Ms. Piselli’s ability to “secure obligations” for support and equalization, misapprehended the intent of Rule 7(5) and as such, the wife’s Motion on this point failed. Essentially, there was no basis in law to hold Ms. Piselli accountable for her son’s obligation to pay either spousal support or an equalization payment. As such, the court was not able to make an order in favour of, or against her and it would not be in keeping with Rule 7(5) to add Ms. Piselli as a party. Had this been successful, one can only imagine the number of parties who would wish to bring their in-laws into proceedings.

2. Order for Disclosure. The wife was seeking an order for the production of Ms. Piselli’s business records for the business in which the husband in this matter worked for. The records requested were set out in a Schedule to the wife’s Motion materials. Although it was agreed that the husband did not have an ownership interest in the business, counsel for the wife wanted to establish at trial that the husband had a “declaratory interest” in the business.

Rule 19(11) of the Family Law Rules allows for documents in a non-party’s control and that is available only to the non-party, to be produced either for examination alone or for copies to be produced as requested. This will only be ordered were it would be unfair for a party to go on with the case with out the requested documents. It should be noted that the wife had already requested many of these documents from opposing counsel and that many had already been provided to her on a voluntary basis. The schedule attached to the wife’s motion materials was not clear as to which documents had already been provided and which were outstanding. Furthermore, there was no specificity as to which of Ms. Piselli’s business records were being requested. A request for third-party records must be specifically identified in a manner that “allows the trier of fact to determine whether or not the document ought to be ordered by the court.” Finally, the relevance and necessity of the documents being requested must be sufficient for the court to find that it would be unfair for the requesting party to go on with the action without same.

In the normal course, parties to a proceeding have a duty of full disclosure towards the other party. In this instance, as has been set out above, Ms. Piselli was a non-party and therefore, her business records were only obtainable by request through a Motion with notice served to every party in the proceeding. Justice Mc Gee ultimately held that there was no evidence to show that the documents being requested were necessary so as not to prejudice the wife in this matter in the continuation of the action. Therefore, the wife’s motion for the production of documents also failed.

3. Questioning of Ms. Piselli. The wife wanted to question Ms. Piselli with respect to her business and her son’s involvement in same. Generally, Rule 20(5) of the Family Law Rules protects parties from “potentially intrusive, costly and time-consuming processes of discovery” unless it is required to deal with complex issues.

In this matter, Justice Mc Gee was concerned about the oral examination of Ms. Piselli as she believed that it may depart from the relevant issues of the matter and instead be used as an intimidation tactic in the proceedings. While it was noted that Ms. Piselli may very well be a witness at the Trial of this matter, at this stage of the proceeding, Justice Mc Gee did not think that it was appropriate for a direct oral examination for discovery take place. Instead, she ordered written questioning take place to shield Ms. Piselli from the potentially costly and time-consuming examination.

Overall, this case exemplifies the involvement of third-parties to a proceeding. As seen in this judgment, the Rules specifically attempt to protect third-parties from involvement in family law proceedings. If these Rules were not in place, the would be the potential that third parties would be brought into proceedings without reason wasting both the Court’s time and the time of the third party. Justice Mc Gee’s decision shows the high-threshold of evidence required before third party will be involved in any way.

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